The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1887-05-05
THE COURTS.
SUPREME COURT.

SUPREME COURT.
A. II. Willie, Chief Justice Associate
Justices, j. W. Stayton and R. R. Gaines;
Charles S. Morse, clerk; M. M. Johnson,
bailiff.
Lucy j. Proctor ve. G. I. Wilcox, execu-
tor, from Bell county. Opinion by Gaines,
A. j. This was an original action for a
new trial instituted in the court below by
appellant.
The suit was brought at first by appel,
liant for partition of land and came to
trial before the court October 7, 1881, a
jury being waived. The court decided
against appellant who made motion for
new trial which was overruled October
80, 1881. Appellant then asked and OBJ
tanned delay of ten days in which to
make up a statement of facts and have
them signed by the judge, because the at
torney for the defendant refused to agree
to them. The judge told appellants coun-
sci that he would be at Waco, October 90
and 30, and at Marlin until November 6.
After several Intellectual attempts to OBJ
tain an agreement with defendants coun-
sci, the statement was mailed to the judge
November 3, at Marlin, between which
place and Bolton were daily mails, and il
took but day to go from one place to the
other. On the 10Th of November a state
ment of facts signed by the Judge on the
18th of that month was received through
the postoffice and filed the next day. The
petition for the new trial was
demurred to and the demurrer su5-
tanned and the cause dismissed
We do not feel called upon to decide that
an original petition for new trial can be
entertained in any case upon the ground
that the party aggrieved has been de-
prived, without any fault of his, of an
opportunity to present his case upon ap-
peal We find only one case where UGH
bill has been held good, and in that the
supreme court of Ohio had original juris-
diction as court of equity, and appel
late jurisdiction over the court below.
In Overton VS.. Blum, so Texas, Alt, it
was refused because the petition did not
show that the plaintiff had been preiu
diced. But if such an action can be sue
cessfully maintained upon any state of
facts, the plaintiff must show that he ha S
been deprived of his right by no fault of
his, and he must be held to the strictest
diligence preparing his case for the
higher court. In the case before us,
three weeks elapsed from the time the
Judgment was rendered until the motion
for new trial was overruled. The trial
had been by the Judge, and the overriding
of the motion might have been antici-
pated. Nevertheless, after the grant of
ten days, did plaintiff use proper dill
gence in getting statement filed? We
think not Plaintiff should not have
trusted to the uncertain mails in such an
important matter but have sent an agent.
The counsel, at least, should have re-
quested an answer. and thus given some
kind of safe guard, but
this was not done. Because the
petition does not show proper diligence
the judgment sustaining the demurrer is
affirmed.
Thomas Trammel & Co. VS.. George w.
Morrul, from Howard county. Opinion
by Willie, C. j.
The facts of this case are as follows:
Lawson, Smith & Co. entered into a con-
tract with appellee, in which the latter
agreed to build four stone walls for $4,000,
Lawson, Smith & Co. to furnish him the
money as he needed it to carry on the
work. Appellee had provided a large
quantity of stone, some of which was used
in the walls and the remainder fully pre-
pared for use, when Lawson, Smith & Co.
notified appellee that they could not
carry out the contract. This March s,
1884, and on March Is appellants levied
an attachment on the lots upon which the
walls were being built, and they were sub
sequently sold to satisfy the attachment.
On March "a appellee bill of particu,
lars of work done and materials fur
nished, and served a duplicate on Lawson,
Smith Co. 1t was shown in the evil
dence that about 400 perches of the stone
included in the bill of particulars did not
enter into the walls and was not on the
premises, but that it was prepared for
the use of the building, and left one and
one-half miles from the building. Appel
liant claimed that appellee had no lien for
this stone, of which there were 400 perches,
the work on it costing $3.50 per perch.
There are three lines of decisions upon
this question: First, that the material
must actually enter into the construction
of the work to give lien; second, that if